¶1 dissenting. I respectfully dissent from the majority opinion in this case.
¶2 We do not have in this case the question of the right of an officer to take finger prints of a person held in the officer’s custody to answer a criminal charge. The only question here presented is whether the circuit court, after granting bail to a person accused of a felony, has the power to recall the defendant into custody for the purpose of permitting the sheriff to take finger prints of the accused.
¶3 When a court of competent jurisdiction makes an* order granting bail to a person charged with a crime such an order is a final judgment and, if the defendant complies with the same by furnishing bail in the amount stipulated, he is entitled to his liberty and may not be recommitted, except for one of the three reasons set forth in the statute (§ 3791 of Pope’s Digest), to-wit: First, failure to appear in accordance with the terms of the bail bond; second, a showing that a surety on the bail bond is dead or insufficient or has removed from the state; and third, the finding of indictment against the accused for an offense not bailable.
¶4 “An order granting bail is res judicata and final as to the state, and even to the accused except as to the amount, which may be reduced upon appeal or otherwise. If hail is granted after indictment found, the accused cannot be rearrested for the same offense on a new indictment and bail refused, except upon surrender by his sureties, . . . 6 Am. Jur. 85. “Where a court having the matter properly before it enters its solemn, judgment and order that accused is entitled to hail, such order is res adjudicata on that question as to the state . . .” 8 C. J. S., § 47, p. 95.
¶5 Appellant has complied with the order of the court and has furnished proper bail. It is not claimed that he has violated the terms of his bail bond or that his bail has become insufficient* by reason of the death or removal from the state of his surety. Nor is it contended that he has, since giving hail, been indicted for a non-bailable offense. Therefore, he is entitled to his liberty free from any restraint or interference by the court or any official thereof until such time as he is required to appear in court and answer the charge that has been made against him. Ours is a government of law, not of men, and when a court or any governmental agency proceeds to interfere in any way with the personal freedom of a citizen, there should be some express provision of the law that authorizes such interference; and, if there be no such provision of law, then the proposed act of interference is illegal and a trespass upon the fundamental rights of the citizen. There is no statute, no common-law rule, no constitutional provision, which authorizes a court, after granting bail to a defendant, to recommit hiin to the custody of the sheriff for the purpose of having defendant’s finger prints taken. No court of last resort in this country has ever approved such procedure.
¶6 I am, therefore, unwilling to agree that the circuit court has the power to make the order complained of here.
¶7 I am authorized to state that Mr. Justice MoFaddin concurs in this dissent.